In Ex parte E.R.G., [Ms. 1090883, June 10, 2011] ___ So. 3d ___ (Ala. 2011) the Court found that the right of a fit parent to determine, among other things, who has contact with their child is a “fundamental”  right and therefore any law interfering with that right must pass the “strict scrutiny” test to be constitutional.  This test is the most stringent one a court applies to determine the validity of a statute and our Supreme Court held that it was not met in this case.

The question of how this ruling affects older cases where grandparent visitation has already been awarded was recently addressed in Burnette v. Burnett, [Ms. 2100935, December 9, 2011] ___So. 3d___ (Ala. Civ. App. 2011).  The Alabama Court of Civil Appeals held that a change in substantive law, such as a finding that a statute is unconstitutional, should be applied retroactively.  As a result, the court overturned a previous award of visitation to grandparents.

Interestingly, the Alabama Legislature amended the grandparent visitation statute to make it more difficult for grandparents to get visitation.  The court in Burnett mentioned this and specifically stated that they were not addressing the question of whether or not the amendments to the statute were constitutional since they were not in effect at the time of that decision.

What does this mean for parents and grandparents dealing with visitation issues?  It’s good for parents and definitely not good for grandparents.  Any parent who does not want to continue sending their child to visit grandparents can now file a motion to terminate that visitation order and have a good chance of succeeding.  Grandparents who are still willing to fight for visitation will have to rely on the recent amendments to the statute and be willing to defend the constitutionality of those amendments until our courts determine whether the statute will survive.

If you are the non-custodial parent and you have to move away from your children, then this can be the basis of a motion to reduce your child support.  That is especially true if you are going to be paid less money to work at your new job.   In that case you can request a reduction for both reasons.  Of course, anytime you are divorced and there are children involved, there is always a chance that you will have further disagreements that result in potential litigation before a judge.  As a result, documenting these extra expenses with receipts, bank records and/or credit card statements is essential to giving yourself a chance to get the judge to agree with your position.  Remember, the person paying child support is always the one that bears the burden to prove payment of support no matter what form.     

Travel costs can also be important if you are the custodial parent and you are the one that is moving.  If you notify your Ex that you intend to move and they object, litigation attempting to get a judge to allow the move can be complicated, time consuming and expensive.  Offering to reduce the child support they are paying as a way to get them to agree to the move is one of many tools you can use to settle the dispute.

It turns out she was having a Skype video conversation with her Uncle who lives in Boston, Massachusetts.  As I leaned in to view the screen I saw my brother-in-law and also saw myself in the bottom of the screen.  I waved and said hello and he did the same back to me.  Amazing!

I have had several opportunities to put provisions in agreement divorces or relocation case settlements that obligate one party or the other to have broadband connections to facilitate communications with the other non-custodial parent but this was my first personal experience with it in video form.  It really was a great way to communicate and was much better than a simple phone call would have been.

Alabama has no statutory obligation requiring a court to consider Skype or other forms of ”virtual visitaion.”  I am also not aware of a published opinion where this was required by a judge after a hearing.  However, with the economy being in the condition it is, causing both custodial and non-custodial parents to consider relocating to find jobs, the technology that allows this sort of communication can help improve an otherwise bad situation.  The technology has defenitely come a long way.  Video conversations are certaily no substitution for spending time with your children but they absolutely can help give the feeling that your children are not so far away.

The article above describes a prime example of when virtual visitation would be appropriate and desirable. The Father lives in another country and only gets to exercise in-person visits a few times per year. Even so, his divorce agreement guarantees him contact with his 5 year old daughter by internet video connection and he usually gets to talk to her this way at least two times per week. The fact that they are able to look at one another during these talks seems to make a big difference in the quality of his contact as opposed to mere telephone conversations.

While local Judges may not be familiar with this method of contact, based on the very broad discretion Judges have in this state when it comes to visitation matters, I think it is something they have the power to order now, without the need to have a specific statute autorizing it. With the proliferation of broadband internet connections as well as the ease with which these video connections can be set up, there is no reason to only consider them in situations where the parties are separted by long distances. These contacts could just as easily take place as a part of local visitation situations.

In theory, a domestic relations and/or Juvenile Court Judge has very wide discretion to fashion particular visitation schedules in each case depending on the facts and circumstances of that case. In reality, however, most Judges in this area have developed their own “standard visitation” schedules that they put in their orders. These can vary slightly from the basic order as well. For instance, in Mobile, a Wednesday night can be added if the parties ask for it, but the Courts will not allow much more that that, despite an agreement between the parties. However in Baldwin County, Wednesday night is part of the standard order. Also, Baldwin County Judges will allow the parties to share custody where the children spend an even amount of time with each parent (two weeks with one and two weeks with the other, for example). The following are the “highlights” of the normal visitation orders in different courts in this area.

In Mobile County it is as follows:
-Every other weekend from Friday at 6pm to Sunday at 6pm.
-One month during the Summer.
-One week at Christmas beginning at 2pm on Christmas Day.
-Thanksgiving and Springbreak holidays alternate in even and odd years.

In Mobile County Juvenile Court, Judge George Brown has a written Schedule that is given to each party and is included in all of his orders, basically word for word. It is several pages and very specific, but generally it is as follows:
-Every other Weekend Friday at 6pm to Sunday at 6pm and including each school holiday that falls on the Friday or Monday when that parent exercises visitation.
-One month during the Summer.
-One week at Christmas beginning at 2pm on Christmas Day.
-Thanksgiving and Springbreak holidays alternate in even and odd years.

In Baldwin County Domestic Relations and Juvenile Court there is also a written order that is included in each order but generally it contains the following:
-Every other weekend from Friday at 6pm to Sunday at 6pm.
-Every Wednesday night
-Six consecutive weeks during the Summer.
-One week at Christmas beginning at 2pm on Christmas Day.
-Thanksgiving, and many other holidays are alternated in even and odd years and springbreak is divided equally.

One thing about these “standard” visitation schedules is that the parents are free to develope their own schedules as they see fit no matter what the Judge’s order states. The order only applies when the parties cannot agree on their own schedule and serves as a minimum amount of time the non-custodial parent will get to exercise visitation.